Sunday, March 1, 2009

Just because he's closing Guantanamo doesn't mean the new president can reform all those real-world Jack Bauers. Or convict them. Or stop them from wiretapping your phone. The reckoning for the Bush administration's interrogation memos may surprise you.

By John H. Richardson

David Hughes

Way back in November, before I even broke out the crystal ball on Barack Obama, I made something of a prediction in this column: "It may be time for Democrats to start slowly ratcheting back their outrage on the Foreign Intelligence Surveillance Act, alternative terrorism courts, and even some forms of aggressive interrogation. Otherwise, it's going to be awkward for them to adjust to the realities of life under Democratic rule."

And, verily, it has come to pass. Late last month, the Obama administration filed papers asking for a stay in the lawsuit over the legality of George W. Bush's refusal, in the wake of the 9/11 attacks, to request search warrants before wiretapping American phones. On the terrorism trials, President Obama has indicated more than once that he is considering the need for some kind of alternative court. And he has hedged on interrogation from the outset, limiting the Army to the Geneva Convention but holding open the door to the CIA's use of more aggressive interrogation techniques. (At his confirmation hearing, CIA Director Leon Panetta made this explicit by saying if the Geneva-appropriate techniques proved insufficient, he would ask for "additional authority.")

On top of all that, as Charlie Savage pointed out last week, Obama's team has also supported the indefinite detention without trial of terror suspects in Afghanistan and the rendition of captives to other countries; taken the Bush position that at least one torture trial cannot proceed because of state secrets; and refused to give prisoners in Afghanistan the right to challenge the evidence against them in U.S. courts.

As far as I'm concerned, Bush earned nearly every bit of suspicion and hostility he received. By manipulating intelligence, by allowing his minions to lie about yellowcake and mushroom clouds, by hiding his wiretapping and interrogation decisions from the public, by dismissing the legitimate strategic concerns of other nations and even his own top military brass — the examples go on and on — he turned the world's sympathy into hatred.

But that doesn't mean everything he did was wrong.

Take the interrogation issue. On the left, the answer is simple: Bush tortured, so we need war crimes trials to re-establish the rule of law. But this will never happen. Consider the sequence of events. A few months after 9/11, the CIA captured a top Al Qaeda strategist named Abu Zubaydah. They believed he had knowledge of coming attacks and wanted a legal opinion on how rough they could get during interrogation. Getting somewhat rough seemed to be an option because terrorists were never covered by the Geneva Conventions, and the Convention Against Torture defined torture as "extreme" physical or mental pain.

The job of defining extreme pain went to John Yoo, a lawyer often mentioned in the category of Future Defendant in a War Crimes Trial. Critics like Scott Horton have written that Yoo was part of a "torture conspiracy," writing dishonest briefs "for the explicit purpose of covering the torture project with impunity and pushing it forward by overriding the judgment of serious lawyers at the Pentagon and CIA." But even before entering government service, Yoo had written a long book arguing that a president can break the law in the time of war. This contrarian argument made him an academic star. As to his infamous definition of the extreme pain as equal to organ failure or death, Horton insists that Yoo simply lied about the law, ignoring contrary arguments. But I spent a week with Yoo last year, attending his law classes and traveling with him, and I'm fairly certain that Yoo really believes the things he wrote. A jury could convict him of bad lawyering, but not of lying to advance a criminal conspiracy.

Under Yoo's memo, with Bush's approval, the CIA waterboarded three people. It seems extremely unlikely that a jury would convict CIA officers who acted under a decision from the Justice Department and a go-ahead from the president. It seems equally unlikely that a jury would convict a president who made that decision in the months after 9/11.

And what about Guantanamo, you say? Didn't Susan Crawford — the woman Bush put in charge of bringing Guantanamo prisoners to trail — admit last month that we tortured a prisoner named Mohammed al-Qahtani?

This is the heart of the problem: We have come to a national consensus that waterboarding is torture, which is why the CIA stopped after three abuses. But the interrogation techniques used on al-Qahtani included sleep deprivation, prolonged isolation, nudity, and prolonged exposure to cold — none of which rise to the level of torture individually. As Crawford notes, "This was not any one particular act. This was a combination of things."

These are the "enhanced" interrogation techniques. They're what Donald Rumsfeld was talking about when he wrote his famous note asking why standing was limited to six hours. To the civil libertarians, this is evidence of the torture conspiracy. But the whole point of Rumsfeld's question is to stay on what he considered to be the permissible side of the line. You can certainly denounce his judgment, but it's unfair to say that he was gleefully embracing torture.

And what about Abu Ghraib? What about the 100 or so prisoners who died during interrogation? What about that guy packed in ice?

There's no question that allowing the Guantanamo techniques to migrate to Iraq led to a historic disaster, giving a government stamp of approval to men's worst impulses. I've talked to military interrogators who served in Iraq, and it's clear that things got crazy — at Camp Nama, hunting the head of Al Qaeda in Mesopotamia, they were picking up random civilians in sweeps and dousing them with buckets of freezing water. The military should never have been allowed to take make this kind of technique mainstream. But walking that cat back to the White House will be impossible, especially when you consider the Crawford problem: A single bucket of freezing water is cruelty. Fifty is torture. Where did it cross the line?

This said, there will be investigations and subpoenas and congressional hearings. If solid evidence turns up, there will be trials. That is inevitable and good, making the line clear. It's also wise, no matter how practical or reformed it may be, to close the terrorist-recruiting tool known as Guantanamo. And we should all honor the noisy Americans who brought the torture issue to light, from military officers like Captain Ian Fishback and Colonel Alberto Mora to journalists like Jane Mayer, Seymour Hersh, Dana Priest, Andrew Sullivan and Mark Danner — our modern Woodward and Bernsteins, heroes all.

But the point is, there is no happy answer to the warrantless wiretap problems. Or to the prosecution of terrorists captured under secret or imperfect evidence, or to indefinite detention of enemy soldiers in an endless and ill-defined war. Or to the interrogation of terrorist leaders in a world of nuclear weapons and suicide terrorism. Obama is wise to keep his options open, even if it means keeping a tiny crack in the lid of Pandora's Box.